District Court Midden-Nederland ruled on 28 February 2020 (ECLI:NL:RBMNE:2020:978) that the seller is liable for serious cracking, ticking and popping noises coming from the roof structure. According to the court, the property thereby failed to meet the terms of the purchase agreement, because normal use as a residential property was substantially impaired.

What happened?

The buyer purchased a property in July 2017. In the NVM disclosure form, the seller had noted regarding the roof: 'noises caused by timber roof structure operation during extremely dry periods'. Following delivery and subsequent renovation work, the buyer discovered that the roof produced extremely loud cracking noises in warm weather. The buyer then commissioned an investigation by an engineering firm. The investigation revealed that during one night period, the roof had produced 26 cracking, clicking or popping noises between 50 and 63 dB(A). According to the report, 63 dB(A) is comparable to the sound of a digital alarm clock at approximately one metre distance. The expert concluded that the noises were caused by the construction of the roof elements. This included movement of the roof elements due to temperature and moisture variations, as well as play (clearance) around fastening points, which allowed parts of the roof to shift in relation to each other. This resulted in ticking, cracking and popping noises.

Defence of the seller

The seller argued that the buyer had complained too late and therefore could no longer invoke non-conformity. The seller also claimed that the buyer should have understood from the information form that the roof could produce noise. Furthermore, the seller contended that the property remained suitable for normal use as a residential dwelling.

Court ruling

The court rejected the seller's defence that the complaint was made too late. The buyer had first waited to see if the noises would continue, and subsequently had an expert inspection carried out. Shortly after receiving the expert's report, the buyer held the seller liable. According to the court, the buyer had acted with sufficient promptness in doing so.

The court established that a residential property must be suitable for normal use as a dwelling. This includes the requirement that the property can be lived in in a sufficiently safe manner without the enjoyment of the home being materially affected. According to the court, this was not the case in this matter. The decisive factor was that the noises in the bedroom occurred with great regularity and reached sound levels between 50 and 63 dB(A). The court aligned itself with the guideline value of a maximum of 45 dB(A) in bedrooms used by the World Health Organisation (WHO). Against this background, the court ruled that the enjoyment of the home was materially affected. The seller's argument that the buyer knew the roof could make noise also failed. According to the court, the buyer did not need to understand from the statement "noise may occur during extremely dry periods due to the action of the wooden roof structure" that such serious and loud cracking and popping noises in the bedroom could occur. The court therefore concluded that the property did not have the characteristics necessary for normal use as a dwelling at the time the purchase agreement was concluded. This constituted non-conformity.

Repair costs and compensation

The buyer initially claimed full replacement of the roof panels for approximately €52,000. In the alternative, he claimed repair costs of €28,910. The district court rejected the full replacement claim. According to the court, the buyer could reasonably have been expected to account for some roof noise when purchasing the property, particularly given the information provided in the disclosure form. Therefore, the roof did not need to be completely renewed to eliminate all possible noise. However, the court did award €22,000 for roof repairs. In addition, investigation costs of €1,149.50 were awarded, bringing the total judgment to €23,149.50 excluding interest and court costs.

Read here the full ruling.

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